Northern Territory Second Reading Speeches

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CRIMINAL CODE AMENDMENT (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) BILL 2002

Madam Speaker, I move that the bills be now read a second time. The purpose of these bills is to amend the Criminal Code with respect to both the defence of insanity, and the want of understanding in an accused person. A defence of mental impairment will replace the defence of insanity, although the substantive law regarding the defence remains unchanged. The provision dealing with the want of understanding in an accused person will be replaced by provisions dealing with circumstances where a person is unfit to be tried for a criminal offence.

The legislation will provide progressive and long overdue reform. New procedures will be for dealing with persons being tried by the Supreme Court who are believed to be either unfit to stand trial or whose mental competence to commit a crime is in question. The Administrator’s pleasure system will be abolished. This system has meant that, when a mentally ill person has been tried for an offence and found not to be criminally responsible for an offence because of their mental condition, the court had no option but to commit them to prison ‘until the Administrator’s pleasure is known’. This system was drawn from the criminal law of the 19th century, drawn from a time when people shunned the mentally ill, treated them as being incurable and needing to be locked away to protect the rest of society. Indeed, the provision of the current section 382 of the Criminal Code replicates provisions dealing with the disposition of persons under the United Kingdom Criminal Lunatics Act of 1800, which required persons found to be insane to be held in strict custody ‘until His Majesty’s pleasure be known’. The only way in which a person could be released from such custody was by the Administrator in the Executive Council exercising his power of release. No wonder that a phrase was coined that ‘His Majesty is seldom pleased’. Such a system brings political pressure and influence to bear on decision making. It is a system that has been abolished in other jurisdictions.

We have moved well passed the time when thinking of the mentally ill as incurable lunatics. Modern understanding of mental illness includes compassion and we should not be punishing people for behaviour that was outside their control. The Administrator’s pleasure system did precisely that, incarcerating a person potentially for the rest of their lives for an action that was brought about by an illness. Modern views also include an understanding that mental illness may be treatable and that the mentally ill do not have to incarcerated indefinitely to protect the rest of society. There are of course, questions of public safety that arise in these circumstances but these are not questions to be answered by politicians. These are matters of the criminal justice system itself. Courts have the role and responsibility of balancing the rights of individuals with the protection of the community.

This legislation will therefore provide for the Supreme Court to determine questions of detention and release. In doing so, the need for community safety is specifically drawn to the court’s attention by this bill as an important determinative of their decision making. If the court considers that the safety of the public will be or is likely to be seriously at risk if a person is released then they must not order that person’s release. There are also problems with the provisions in the Criminal Code that provide for persons who are unfit to stand trial for the offence with which they have been charged. The basic principle of our legal system is that a person is entitled to a fair trial. The fitness provisions deal with the situation where fairness cannot be achieved because of the condition of the accused. Factors such as the inability to understand the nature of the trial or being able to understand the substantial effect of the evidence presented mean that a person cannot be fairly tried for an offence with which they have been charged. This inability may arise from a number of different causes. It can obviously arise in some instances where a person has a mental illness although not in all cases. It may arise in the case of an intellectually disabled person; there may be cases where the accused is suffering from severe physical illnesses at the time of the trial. There are a wide range of conditions that must be taken into account in provisions of this nature and the law must provide some means of dealing with these situations.

The problems are not new ones but they have become chronic ones for the proper administration of criminal trials and for the safety of the community. Ironically, whereas the old insanity provisions had the potential for indefinite incarceration so that people might continue to be locked away long after their illness was cured or controlled, the flaws in the unfitness provisions have resulted in a situation where potentially dangerous individuals cannot be retained in custody and are released back into the community with no treatment and no supervision. Some of these offenders have continued to reoffend causing serious injury and potential death to others.

The issue of the adequacy of the fitness provisions has existed since at least the 1980s. In 1983, the case of Jabanardi the Federal Court pointed out difficulties with similar fitness provisions in the then Criminal Law Consolidation Act. Justices Woodward and Jenkinson can comment on any suggestion that a person could be held in custody for many years without trial or any possibility of a trial simply because the charges being laid against him which he will never be well enough to answer is so repugnant to our legal system’s protection of the right of freedom that it would require clear evidence to the legislative intention before it could be accepted. However, no attempt was made to address this problem when the criminal law was codified. The current fitness provision which is contained in section 357 of the Criminal Code provides only three options for a person found to be incapable of understanding the trial proceedings - discharge, bail or an order that a person be kept in custody in such a place and in such a manner as the court thinks fit.

The Northern Territory Supreme Court is taking the view consistent with that of the Federal Court almost 20 years previously that this provision is insufficient to warrant holding a person in indefinite custody where there will never be any possibility that they can answer the charge against them. Consequently, the court’s only option has been to discharge the person unconditionally. This is a highly unsatisfactory situation. Not only does it expose the community to potential risk, but it also fails to provide even a basic measure of responsibility and care for a person who has a disability.

The court is powerless to order any measures that might prevent a recurrence of offending. It is unable to provide any measures that might assist the accused person to become fit to be tried so that the charges against them can be properly tested. It cannot protect the safety of the community by providing for an accused person to be detained where the circumstances might require that step to be taken.

The Northern Territory is not the only jurisdiction to face these problems. The other jurisdictions have also had provisions in their legislation that provided for detention at the governor’s pleasure. Other jurisdictions have also faced the difficulties associated with persons who are not fit to be tried. A committee established by the Standing Committee of Attorneys-General, the Model Criminal Code Offices Committee, considered these matters.

In 1995 this committee developed a Model Mental Impairment and Unfitness to Stand Trial Criminal Procedure Bill, known as the Model Bill. The Model Bill provided a means of addressing the problems associated with these issues. Other jurisdictions have either adopted its terms or taken it into account in drafting their own reforming legislation.
Whilst the legislation is not uniform across the country, it does have common themes. The manner in which those suffering mental or other disabilities are treated in the criminal justice systems in this country should be a matter in which some uniformity exists. But the Northern Territory, under the previous government, declined to act on these reforms. This government, however, took immediate steps to address these issues. In October 2001, I approved the terms of reference for a section 382 committee, a committee of Department of Justice and Health representatives tasked with reviewing the current provisions of the Criminal Code and advising on a possible reform.

Although the committee’s terms were initially to look at the questions relating to section 382, acquittal on the grounds of insanity, the issue of fitness was quickly identified as a matter which also required consideration and the committee moved to explore those issues. By November 2001, this issue was incorporated in a range of matters for discussion and review. In January 2001, the Department of Justice prepared a discussion paper about the legislation and procedures in place in Victoria, legislation which is based on the Model Code Mental Impairment Bill. The bill that is before the Assembly today is substantially based on the Model Bill. It will provide for humane means of dealing with persons suffering mental or other disabilities who are charged with serious offences. It will provide protection for the public where that is required. It will balance each of these interests.

We are not altering the substantive law of the old defence of insanity. We are removing a term that is archaic and offensive. We are not putting in place a reform that means that people will get off crimes, but we are making reforms that will see appropriate use of the defence of mental impairment. In the past, accused people have only raised the defence for the most serious of crimes, usually murder, because the result of the defence was indefinite incarceration in a prison.

There is little point in raising a defence that might see you incarcerated for life when pleading guilty would result in a lesser sentence. This reform will provide an appropriate recognition and dealing with people whose mental competence is an issue in the commission of a serious offence. It will allow them the opportunity to raise the defence and to be dealt with in a manner appropriate to their condition.

The bill that is now before the Legislative Assembly is primarily procedural and dispositional in nature. It alters the court procedures for dealing with questions of mental competence of persons who are alleged to have committed crimes and procedures for their disposition. It alters the procedures for dealing with an accused person who appears not to be fit to stand trial. Once again, the substantive law has not altered; the criteria by which a court is required to assess a question of fitness to stand trial is not altered.

The proposed amendment in fact preserves the criteria for fitness that has long operated under the common law and which has received the approval of the High Court. In general terms, the bill will achieve the following reforms. First, the issues of mental impairment and unfitness to be tried will be isolated from the other issues of the trial and require separate consideration. Then both the defence of mental impairment and the issue of fitness to be tried will be matters for a jury. Where an accused person has been found unfit to be tried, the court will be required to determine whether the person will become fit within 12 months. This not only provides both an opportunity to allow a person to stand a full trial where they only have a temporary disability, which may respond to treatment, but it also ensures that there will be some finalisation of the matter where an accused person will never become fit to be tried. Where it appears to the court that the person will not become fit within 12 months, the court must hold a special hearing. This could occur immediately following on from the hearing as to fitness and where the same jury moves on to consider the remainder of the issues, or it may be adjourned for a period of time. The purpose of the special hearing is to allow the evidence of the prosecution to be tested to determine whether, in the absence of any input from the accused, the accused is not guilty of the offence charged, or whether, on the limited evidence available, the accused committed the offence charged. This is an important reform because the current unfitness provisions do not require the court to give any consideration as to the factual basis of the alleged offence or to any defences which might be available to the accused.

On the questions of detention and release are to be made by the court. Persons to whom these provisions apply deserve the same level of protection in the criminal justice system from an independent role of the courts as others do. Courts have the role and responsibility of balancing the rights of an individual with the protection of the community. Where a person has been found not guilty on the grounds of mental impairment or has been found unfit to be tried, the court must either discharge the person or declare that that person be liable to supervision. The court must then proceed to consider the nature of the supervision order that it will impose. It does so by receiving the reports of those expert in the supervised person’s condition and a treatment plan for managing the accused person’s mental impairment, condition or disability. It may be noted that the term treatment is used in a broad sense, that is, it includes not just treatments that may effect a cure or some recovery, but also treatment in the sense of dealing with or handling the person’s condition, which may be one not susceptible to cure or improvement. Acquired brain injuries or severe intellectual disabilities are examples of conditions that cannot be treated but may be successfully managed to improve outcomes for the person.

Supervision orders may be custodial or non-custodial. Custodial orders include provision for a person to be detained in a prison, but only where there is no other practicable alternatives available for their circumstances. There is to be an ongoing review process of persons under supervision orders. The court has the power to vary or revoke orders. This provides flexibility so a person may be transferred from a custodial to a non-custodial supervision order with conditions such as treatment, medication, accommodation and reporting imposed. They may, equally, be transferred from a non-custodial situation to a custodial situation where issues of safety arise. An emergency power of apprehension and the ability to apply to a court in urgent matters, by phone if necessary, ensures a rapid response to any situation that may arise.

The court is required to set a limiting term equivalent to the period of imprisonment or supervision that would have been appropriate had the person been found guilty of the offence. A major review must be conducted by the court at least three months before the expiration of the limiting term, and no longer than six months before that date, to determine whether the person subject to the order should be released from it. In making this determination the court is required to release the person unconditionally, unless it considers that the safety of the supervised person, or the public, is likely to be at risk if the person is released. This limits the possibility of persons being incarcerated for a period longer than they would have served had they been convicted of the offence and removes the disincentive for the use of the defence for less serious crimes in circumstances where criminal responsibility should not be attached because of the mental impairment. It does, however, preserve the ability of the court to continue detention for those cases where safety is a serious issue.

The bill will provide for the continuance of committal proceedings where the question of competence or fitness arise and for a procedure for the referral of those issues to a Supreme Court. This cures a defect that currently exists which has required some matters to be dealt with by way of ex officio indictment; that is, directly to the Supreme Court.

There is a provision for expert evidence on which the court bases its decisions. The court may receive reports setting out the views of the victims, or the next of kin to a deceased victim, and the next of kin of a supervised person, when determining all matters to do with the supervision orders. Where relevant, a report may be given as to the views of the community of an Aboriginal person. Finally, there is a provision for the notification and consultation of next of kin, primary carers, and victims in decisions and, where necessary, counselling of those persons where a decision has or may be made for a supervised person to be returned to the community.

Transitional provisions provide that the existing Administrator’s pleasure detainees are deemed to be subject to a custodial supervision order and, within six months of the commencement of the legislation, must be brought before the court for a major review. The ability to reindict a person discharged under the previous provisions on fitness is preserved.

The Parole of Prisoners Amendment Bill 2002 and the Bail Amendment Bill 2002 make amendments consequential to this legislation. The Parole of Prisoners Amendment Bill will add to the functions of parole officers the duty to supervise a person placed under their supervision on a custodial supervision order. The Bail Act Amendment will allow a person who represents a person, in respect of whom questions of fitness and mental impairment arise, to enter into a bail undertaking on their behalf.

There will be many issues of a practical and administrative nature which will require consideration for the successful implementation of this legislation. It is proposed, by the end of the first two years of operation of the legislation, a review will be conducted to consider its effectiveness. We will not allow the continuation of an ineffective and impractical regime, as has been the case in the provisions that will be replaced by this legislation.

These reforms are long overdue. The member for Araluen apparently appreciated this in introducing her private member’s bill last sitting. Unfortunately, the bill has so many flaws its operation would immediately cause problems for the court, and result in costly appeals. Let me go through, in some detail, the defects in that bill. First of all, the Carney bill uses the terminology ‘the court’, which will mean a judge sitting alone and lead to the judge, and not the jury, determining the factual aspects of a charge. This is a radical departure from the criminal trial procedure as we currently know it.

The bill proposes that a court inquire into the question of whether the person ‘had a guilty mind’. The term ‘guilty mind’ could not operate within existing criminal responsibility provisions of the code, which address questions of authorisation, justification and excuse. The bill directs the court to impose the same sentence on a person incapable of understanding, as would have been imposed on a guilty person. This is entirely inconsistent with the fact that the person has not been tried or found guilty of the offence. This could lead to a person being sentenced to a substantial period of imprisonment, where they might have been able to rely on the defences under the code, such as self-defence or provocation.

The bill is arbitrary and punitive in nature, rather than focussing on the key issue, ensuring public safety while balancing the rights of the person not convicted of the crime. Finally, the bill contains no transitional provisions which permit people, such as those whom the member for Araluen refers so pointedly in a press release, to be brought back before the courts on their most recent charges.

The bill proposed by the member for Araluen purports to address the issues of concern to the community but, unfortunately, it does not contain the measures that are necessary to provide effective reforms in that area. Nevertheless, I commend the member for Araluen for at least attempting to provide some adequate legislation …

I trust that the comprehensive reforms I am bringing forward in the form of the Criminal Code Amendment (Mental Impairment and Unfitness to be Tried) Bill 2002 will have the support of the opposition. I commend the bills to honourable members.

 

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